FEDERAL ELECTION COMMISSION 

Washington, DC 

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT: 

The Commission 

Office of the Commission Secretary VFV

January 10, 2024

AOR 2023-09 (Cortez Masto) – Comment on Drafts A and B 

Attached is a comment received from Elias Law Group on 

behalf of the requestor regarding AO 2023-09 (Cortez Masto) 

Drafts A & B. This matter is on the January 11, 2024 Open 

Meeting Agenda.

Attachment
January 10, 2024

BY ELECTRONIC MAIL DELIVERY 

Federal Election Commission 

1050 First Street NE

Washington, D.C. 20463 

Re: Comments Regarding Advisory Opinion 2023-09 (Cortez Masto) – Drafts A and B

Dear Commissioners: 

On behalf of Senator Catherine Cortez Masto (the “Requestor”), we submit this comment

regarding Drafts A and B of Advisory Opinion 2023-09. We support the conclusion reached by 

both drafts, which is consistent with the text and purpose of the Federal Election Campaign Act, 

as amended (the “Act”), as well as Supreme Court and Federal Election Commission (the 

“Commission”) precedent.

Both drafts correctly conclude that Requestor may establish a Nevada political action committee 

(the “State PAC”) to raise and spend funds only in connection with Nevada non-federal elections, 

and, when accepting funds to the state PAC, Requestor need not aggregate such funds with 

contributions made by the same source to Requestor’s federal leadership PAC (the “LPAC”). Both 

drafts determine that Commission regulations setting an aggregate contribution limit for affiliated 

committees applies only to “contributions” as defined by the Act. To constitute a “contribution” 

under the Act, funds must be given “for the purpose of influencing an election for Federal 

office[].”1 Because all funds solicited to Requestor’s State PAC would be used exclusively for

Nevada state and local elections, both drafts appropriately observe that such funds are not

“contributions” under the Act and need not be aggregated with contributions made to the LPAC

from the same source. 

The conclusion that funds raised into the State PAC are not subject to aggregation with 

contributions to the LPAC is mandated by Supreme Court precedent and consistent with the 

Commission’s interpretation of the Act. In McConnell v. FEC, the Supreme Court, in analyzing 

the federal soft money prohibition at 52 U.S.C. § 30125(e)(1)(B), recognized that federal 

officeholders may raise federally permissible funds for a state committee under a separate 

contribution limit. The Court explained that 52 U.S.C. § 30125(e)(1)(B) “doubles the limits on 

what individuals can contribute to or at the behest of federal candidates and officeholders”2 And 

1 52 U.S.C. § 30101(8)(A)(i); 11 C.F.R. § 100.52(a).

2 McConnell v. Fed. Election Comm'n, 540 U.S. 93, 181 n.70 (2003).
2

in Advisory Opinion 2005-02 (Corzine II), the Commission concluded that a federal officeholder 

may solicit federally-permissible funds from donors under a separate limit to a state party’s 

nonfederal account without regard to any contributions previously solicited by those donors to the 

federal account.3

Both drafts reach the right result in concluding that Requestor may solicit federally permissible 

funds for her State PAC without having to aggregate funds donated from the same sources to her 

federal LPAC. Accordingly, we urge the Commission to issue an advisory opinion adopting this 

conclusion.

4

Very truly yours,

Jacquelyn Lopez

Jonathan Peterson

Kaveri Sharma

Counsel to Senator Catherine Cortez Masto

3 Fed. Election Comm’n, Adv. Op. 2005-02 (Corzine II) at 6. 

4 Draft B concludes that “Senator Cortez Masto is not a candidate for office.” Draft B at 4. For clarity, Senator 

Cortez Masto is a candidate for federal office but is not a candidate for state office in Nevada. Additionally, for the 

avoidance of any doubt regarding Requestor’s proposed activities as discussed in Draft B, we do anticipate that the 

State PAC’s major purpose will be to support the election of nonfederal candidates to state office.